ALI BAQAR NAJAF, J. --- This single order shall dispose of this writ petition as well as writ petition No. 2419 of 2010, as both these matters involve the common question of law and facts.
2. The petitioners in both the writ petitions challenge the letters dated 18.11.2008 and 12.01.2010 refusing the project allowance to the petitioners with direction to the respondents to grant them a project allowance in accordance with Office Memorandum issued by the Finance Division bearing No. F.16( OR-14/2003, dated 6.07.2005, and extended on 12.08.2008 with a direction to treat their case at par with the other employees.
3. Brief facts giving rise to filing of these writ petitions are that the petitioners are employees of Pakistan Railways and holding the, posts including the senior charge-man, junior charge-man, JELC Power, and AFT power. As per letter No. F-16(DR)14/2003, dated 6.07.2005 the same was extended to PSDP on going project vide letter No. F-16(1)R-14/2003, dated 12.08.2008, some allowances were permitted in para No. 2 of the writ petition. It was, however, clarified by the Finance Division Instructions that all employees are entitled to receive the said allowances which are duly covered by the provisions of funds and posts in PC-1 excluding labour as defined under Factories Act vide letter dated 25.11.2008, that PC-1 was modified to include the labours under Factories Act for the grant of project allowance in January 2009 which was sent to the Chairman Railways for approval; since the employees holding posts of four, chargeman PBS-12; Sub-Engineer BS-11, Assistant Chargeman BS- 11 end junior chargeman BS- cannot participate in the Trade Union activities as they are the employees and not labourers, as such, their services are supervisory in nature; that the permission was sought in this regard vide letter dated 29.11.2008 so as to equalize them with other employees who were granted such allowance. It is also stated that the project allowances were allowed in case of (i) setting of dry port project at Nagar near Raiwind; (ii) double track from Khanewal to Raiwind project; (iii) track rehabilitation project (iv) similarly project allowance granted to the officer/staff of carriage Factory ICT by SAO/MDS working under FA(COA/MDS requested vide letter dated 25.11.2008. Hence the petitioners seek a direction accordingly.
4. Learned counsel for the petitioners submits that non-payment of project allowance to the petitioners is highly as they are full time employees; that all other employees are of same categories working under the respondents, all over the country and receiving the project allowance; that even similarly placed 'employees of other departments like National Highway Authority are also receiving the project allowance; that according to clause-13 of PC-1 "the categories of the employees of the carriage factory were also determined as administrative in nature". The relevant clause is as under:--- Administrative arrangement For implementation project. MD Carriage Factory will be the incharge of the ,project and special project allowance will be admissible as per rules to the Executive! Administrative staff.
Rehabilitation/ conversion of coaches will be carried out at Carriage Factory Islamabad. For additional requirement of staff for Carriage Factory Section (Annex-XVI).
For operation and maintenance staff requirement of these coaches will be required on permanent basis vide Annex-XIV & XV. That the petitioners do not come within the definition of worker as defined in the Factories Act -in clause 116 of Workshop Manual, which is reproduced in verbatim as under:-- "116. Shop Foremen.-- The workshops themselves are sub-divided into "Shops and sub-divisions, which are under the supervision of Foremen, who have under them Assistant Foremen, Chargemen and Mistries to assist them in the work of supervision.".
And the petitioners are also be allocated the duties as per roster.
That even the clerical staff of pay scale 14 to 16 are also receiving the project allowance though they have no nexus with the project; that the accounts department is also receiving the said allowance but the petitioners are deprived despite the fact that they were actually working at the project; that time and again various requests were made to eliminate the discriminatory act but they have taken no action which is violation of Articles 4 & 25 of the Constitution of Islamic Republic of Pakistan,. 1973. Hence pray for issuance of requisite directions. Places reliance on Hablbullah.
Khan and others v. Pakistan and others (PLD 1967 Karachi 300) to argue that the joint writ petition is competent and that the Federal Service Tribunal is not the proper forum.
5. Conversely, learned counsel for the respondents submits that the petitioners are not included in PC-1 category as they are the token-holders; that no discrimination is observed against them; that since 07.07.2011 the project allowance having been stopped and the same cannot be paid now to the petitioners as reflected from the minutes of meetings dated 30.06.2011 (Addenda Item No. 15); that while dismissing the Civil Appeals No. 26 to 50 of 2011 titled. Abdul Rafi and others v. General Manager (M&S) Pakistan Railway, Islamabad and another, the Hon'ble Supreme Court of Pakistan has already observed that since the category of the similarly placed employees was not appointed through transfer or deputation as required by the Notification they were not entitled to the project allowance and that no discrimination was alleged in the said proceedings before the Service Tribunal. The matter relates to, the terms and conditions of the service and the same is not amenable to the jurisdiction of this Court.
6. I have heard the learned counsel for the parties and perused the available record.
7. The petitioners claim the payment of project allowance on the basis that they are the administrative staff and are not labourers or workman. They have also claimed that the discrimination is observed with almost all the employees doing project oriented job, who were released the project allowance even though they have no nexus with the project. However, paragraph No. 5 of the written comments filed by the respondents it is mentioned that the petitioners are technical workshop/supervisory staff and not administrative staff and that the project allowance is admissible only to the executive/administrative staff i.e. The gazetted officer that they are working in the Carriage Factory Islamabad; that they are token holders and are already in receipt of the technical allowance as well as overtime allowance alongwith the labour as admissible under Factories Act, 1934. They have also vehemently denied that the petitioners were discriminated. Obviously, the question whether the petitioners are members of administrative staff or supervisory employees, is a question which is beyond the jurisdiction of this Court.
8. Learned counsel for the petitioners also could not pinpoint the names of employees of the respondents who were drawing the said project allowance having the same category as that of the petitioners. Learned counsel for the petitioners was also unable to show any final order passed by the respondents declining the claim of special project allowance of the petitioners.
9. As far as the point raised by the learned counsel for respondents that the project allowance has been dispensed with vide the minutes of the executive committee on 30.06.2011, suffice it to say that the same was passed during the pendency of these writ petitions, therefore, an order may be passed independent of the said stoppage as it relates to previous period. The order cited by the learned counsel for the respondents dated 26.05.2011 passed by the Hon'ble Supreme Court of Pakistan refers to the point of discrimination was neither alleged nor defended by the petitioners before the apex Court. However, it was observed that those who were appointed through transfer on deputation, or on full time basis were entitled to the project allowance. Learned counsel for the petitioners has also failed to point out the status of the petitioners vis-a-vis the given criteria by the Hon'ble Supreme Court of Pakistan. Annexure'D' attached with the parawise comments by the respondents on the other hand reveals that the duty of the assistant foreman, senior chargeman, junior chargeman, also to be noticed before ascertainment of the exact nature of job of the petitioners for the entitlement of the project allowance. .